Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 9. Liability without Fault?
finding of fact, but a truism: anything can happen. The question is, how likely is this type of
accident if the actor uses due care? For all that appears from the record of the case or any other
sources of information that we have found, if a tank car is carefully maintained the danger of a
spill of acrylonitrile is negligible. If this is right, there is no compelling reason to move to a
regime of strict liability, especially one that might embrace all other hazardous materials shipped
by rail as well. This also means, however, that the amici curiae who have filed briefs in support
of Cyanamid cry wolf in predicting “devastating” effects on the chemical industry if the district
court’s decision is affirmed. If the vast majority of chemical spills by railroads are preventable by
due care, the imposition of strict liability should cause only a slight, not as they argue a
substantial, rise in liability insurance rates, because the incremental liability should be slight. The
amici have momentarily lost sight of the fact that the feasibility of avoiding accidents simply by
being careful is an argument against strict liability. . . .
The district judge and the plaintiff’s lawyer make much of the fact that the spill occurred
in a densely inhabited metropolitan area. Only 4,000 gallons spilled; what if all 20,000 had done
so? Isn’t the risk that this might happen even if everybody were careful sufficient to warrant
giving the shipper an incentive to explore alternative routes? Strict liability would supply that
incentive. But this argument overlooks the fact that, like other transportation networks, the
railroad network is a hub-and-spoke system. And the hubs are in metropolitan areas. Chicago is
one of the nation’s largest railroad hubs. In 1983, the latest date for which we have figures,
Chicago’s railroad yards handled the third highest volume of hazardous-material shipments in the
nation. East St. Louis, which is also in Illinois, handled the second highest volume. . . . With most
hazardous chemicals (by volume of shipments) being at least as hazardous as acrylonitrile, it is
unlikely—and certainly not demonstrated by the plaintiff—that they can be rerouted around all
the metropolitan areas in the country, except at prohibitive cost. Even if it were feasible to reroute
them one would hardly expect shippers, as distinct from carriers, to be the firms best situated to
do the rerouting. Granted, the usual view is that common carriers are not subject to strict liability
for the carriage of materials that make the transportation of them abnormally dangerous, because a
common carrier cannot refuse service to a shipper of a lawful commodity. RESTATEMENT, supra, §
521. Two courts, however, have rejected the common carrier exception. . . . If it were rejected in
Illinois, this would weaken still further the case for imposing strict liability on shippers whose
goods pass through the densely inhabited portions of the state.
The difference between shipper and carrier points to a deep flaw in the plaintiff’s case.
Unlike Guille . . . and unlike the storage cases, beginning with Rylands itself, here it is not the
actors—that is, the transporters of acrylonitrile and other chemicals—but the manufacturers, who
are sought to be held strictly liable. . . . A shipper can . . . designate the route of his shipment if he
likes, . . . but is it realistic to suppose that shippers will become students of railroading in order to
lay out the safest route by which to ship their goods? Anyway, rerouting is no panacea. Often it
will increase the length of the journey, or compel the use of poorer track, or both. When this
happens, the probability of an accident is increased, even if the consequences of an accident if one
occurs are reduced; so the expected accident cost, being the product of the probability of an
accident and the harm if the accident occurs, may rise. . . . It is easy to see how the accident in this
case might have been prevented at reasonable cost by greater care on the part of those who
handled the tank car of acrylonitrile. It is difficult to see how it might have been prevented at
reasonable cost by a change in the activity of transporting the chemical. This is therefore not an
apt case for strict liability. . . .
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